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BADU v. BI


  • appeal
  • 1962-05-28
  • SUPREME COURT
  • 1GLR 406-411
  • Print

KORSAH, C.J., VAN LARE AND ADUMUA-BOSSMAN, JJ.S.C.


Summary

Land law?-Proof of title?-Whether sufficient cause to interfere with decision of trial court.

Headnotes

The plaintiff claimed that her husband Kwasi Manu gave or granted to her a portion of a cultivated area of land which he had inherited from his uncle. She was to use the land for the benefit of their son. After a three-year absence from this land, the defendant sought to restrain her from re-entering. There was an arbitration, but no completed inspection because the defendant swore "Ntamkese," the Ashanti Great Oath and thereby stopped the inspection from being completed. Nonetheless the plaintiff sent her labourers to the land and was in consequence arrested. After her release she sued the defendant for damages for trespass.In the trial court the plaintiff's evidence was corroborated by that of her witnesses, whilst the defendant?'s evidence was unsupported, but judgment was entered for the defendant. On appeal, the Asantehene's Court found it necessary to inspect the locus in quo and in the result allowed the appeal, finding that the judgment of the trial court was "not consistent with the facts on record". It omitted, however, to give judgment for the plaintiff. The Land Court affirmed the judgment of the Asantehene's Court. On further appeal to the Supreme Court.

Judgement

Appeal from a judgment of the Land Court, Kumasi, affirming a judgment of the Asantehene's "A2" Court which had set aside the judgment of the Ahafo/Ano trial Local Court "C" given in the defendant's favour in an action by the plaintiff for damages for trespass to land.

JUDGMENT OF ADUMUA-BOSSMAN J.S.C.

The action resulting in this appeal was commenced by the respondent before this court in the Ahafo/Ano Local Court "C" where by her writ of summons she claimed in effect G50 damages for trespass to a cocoa farm situate at a place called Kwame-Kyemkrome on Afarihene's stool land described as "having boundaries with the properties of Kwasi Manu, forest and a farmstead of Kwasi Manu."

The appellant before this court counterclaimed for (1) declaration of ownership, (2) G50 damages for trespass and (3) injunction to restrain interference with his right and title in respect of the same farm.

The parties will be referred to shortly as the plaintiff and defendant respectively. The trial court gave judgment for the defendant dismissing the plaintiff's claim. On appeal by the plaintiff to the Asantehene's "A2" Court, that court allowed the appeal and set aside the judgment of the trial court. The court did not, however, by what would seem to be inadvertence, give judgment for the plaintiff upon her claim. The defendant appealed to the Land Court, Kumasi, but the appeal was dismissed, and he has brought this further appeal to this court. The judgment of the Land Court was just an adoption of the decision of the Asantehene's Court, so this appeal resolves itself into a question of competition between the decision of the Asantehene's Court and that of the trial court; or perhaps it would be more accurate to say that the determination of the appeal depends upon a consideration of the question as to whether or not there was any good or sufficient cause or reason for the Asantehene's Court as an appellate court, interfering with the decision of the trial court. It falls therefore firstly to consider the proceedings before the trial court and the judgment.

The plaintiff's case was that one Kofi Asiwubuoo acquired forest land at Kwame-Kyemkrome from the Afarihene's stool and cultivated part of it and planted cocoa and foodstuffs before his death, after which he was succeeded by his nephew Kwasi Manu (or Menano or Amenano). This successor was the plaintiff's husband, and he having cultivated a portion of forest, gave or granted a portion of the cultivated area or farmstead to the plaintiff for his infant son Kwabena Amuah by her, whereupon she planted cocoa and foodstuffs in it. The portion granted formed boundary with land in the occupation of her husband, the boundary being marked by "a timber tree, thence to Odum tree, thence to Owawa tree, and thence to the farmstead of Menano (decd.)". She left the farm for about three years and when on her return she went to cultivate the same, the defendant came along and took steps to restrain her from further entry into the farm. The matter eventually came before an arbitration presided over by one Kwabena Gyau, and there Yaw Pem, successor of Kwasi Menano as head of Asiwubuoo's family, was called to state what he knew about the matter, and he stated that he knew a grant was made to the plaintiff but did not know the farm; he knew also that a grant was made to the defendant but did not know that farm also. Eventually an inspection was directed and commenced but the defendant swore "Ntamkese" (the Ashanti Great Oath) and thereby prevented the inspection from continuing to completion. The plaintiff did not respond to the oath, but later sent labourers to the farm to cultivate the same, when the defendant got her arrested, and on her release she instituted the action resulting in this appeal. [p.408]

She called as her first witness Yaw Pem, whose short material evidence was the following:

?"My elder brother Kofi Asiwobuoo (decd.) acquired land at Kwame-Kyemkrome. He gave part of the cocoa farm cultivated to the defendant. After the death of Kofi Asiwobuoo, Amenano succeeded him. The successor Amenano allotted part of the farmstead to the plaintiff. Amenano informed the whole family of the gift. I succeeded Amenano (decd.) ?... When I intended to view the farms of the deceased Amenano I fell ill. Later on I was called by Kwabena Gyau on the dispute of the same property of the plaintiff and the defendant. I told the arbitrators that I do not know the boundary of the disputed farm. The land was not viewed when the defendant swore the recognised ?'Ntamkese?' claiming it.?"

Under examination by the court, he stated: "I did not frequent the farm during the lifetime of Asiwobuoo and Amenano . . . I know the parties are having farms on that area". Her second witness was one Kromogo Wangara, a farm-labourer, who testified that about eighteen years ago he took over as caretaker from one Kofi Adu who was the caretaker of the larger area originally acquired by Asiwubuoo out of which a portion was granted by Asiwubuoo to the defendant's sister, Yaa Nframa, and another portion was granted after Asiwubuoo's death by his successor to the plaintiff. That Adu Kofi showed him the boundaries not only of the Asiwubuoo family land which he was to take charge of, but the boundaries between that and the portion given to the defendant's sister Nframa and the portion given to the plaintiff. He went away to his home town for some time and on his return found that the defendant had ploughed the plaintiff's farm as well as that of Yaw Pem (which he succeeded to after Menano?'s death) so he reported to Yaw Pem, and eventually an arbitration took place about the matter; in the course of which "when the arbitration members tried to view the land in dispute, the defendant swore the recognised oath 'Ntamkese' that he owns the land in dispute" and this caused the inspection to be abandoned. Under examination by the court he testified that:

?"Adu Kofi showed me the boundary of Yaw Pem and the plaintiff. The plaintiff bounded not with defendant ?... Adu Kofi showed me the boundary when Yaw Pem was in possession of his late brother?'s farm. The plaintiff is by the left side of the defendant.?"

The plaintiff's third and last witness was one Awudu Moshie, farmer, who testified that the plaintiff passes through his farm to her farm and that about 30 years ago, the plaintiff bought cocoa pods from him to plant in her farm, and that he visited the plaintiff's farm once about a time when she was engaged in "re-tilling a farmstead with cocoa, one by one in it."

It will be observed from the evidence of the plaintiff and her witnesses that in so far as there was the onus on her it was prima facie discharged, because her evidence of the grant by her husband was corroborated by the evidence of Yaw Pem, the head of the family, and as to the identity or situation of her farm, by the evidence of Wangara, the labourer in charge of the adjoining family property and Awudu Moshie the neighbouring farmer who supplied her with cocoa for planting.

Turning now to the defendant's case, it was to the effect that late Asiwubuoo was his father who about 40 years ago acquired forest land from Afarihene, whereupon he (defendant) with his sisters Adjoa Boaa, Yaa Ataa, and two others assisted him to cultivate it . The father, in due course, granted them a portion of the cultivated land. On Asiwubuoo's death he was succeeded by Amenano, who in turn was succeeded by Yaw Pem, but neither Amenano nor Yaw Pem made any fresh cultivation. [p.409]

About two years before the commencement of the action resulting in this appeal, the plaintiff sent labourers to the land and she informed him (defendant) that Amenano gave her "some cocoa in a farmstead", but he explained to her that the land had already been given to him by late Asiwubuoo. The matter resulted in an arbitration before Kwabena Gyau and other elders, who collected G2 7s. from each side to inspect the land in dispute. Yaw Pem who was called to state what he knew about the matter stated that "he knew not the plaintiff's farm", hence he (defendant) swore "Ntamkese" that he was owner of the farm in dispute. The plaintiff did not respond, but subsequently brought labourers to plough the farm, so he got her arrested by the local authority police who, however, later struck out the case as a land case, after which the plaintiff sued him. Under cross-examination by the plaintiff, he denied that the plaintiff's late husband made any cultivation or farm at all; but it is difficult to see how he reconciles this statement with his own admission contained in his counterclaim that Manu (or Menano or Amenano) had a farmstead with which the land in dispute forms boundary.

His first witness, the local authority policeman who testified concerning the arrest and subsequent release of the plaintiff does not in any way advance his case; nor does his second and last witness Kwame Nimoh, one of the elders who took part in the arbitration, who testified concerning the arbitration proceedings which proved abortive because the defendant swore "Ntamkese" and prevented inspection of the land in dispute.

It will be observed that by the defendant's case he raised firstly, the issue whether any grant had been made to plaintiff at all, for his case was that the plaintiff's husband made no cultivation at all as alleged and the plaintiff had no farm; and secondly, the issue whether the site of the farm in dispute was given to him even before Asiwubuoo died so that his successor could not succeed to it to give it to the plaintiff.

On both issues it seems to me that whereas the plaintiff's evidence is supported by the corroborative evidence of her witnesses, the defendant's evidence stands completely unsupported.

The trial court, however, wrongly I think, did not view the case in that light. Although appearing to accept Yaw Pem's evidence which they referred to in their judgment by saying: "the said Yaw Pem stated that the plaintiff's husband gave her a farm, but he knew not the farm", and in spite of the evidence of the plaintiff's second and third witnesses, persons working in the locality, as to the physical existence of the plaintiff's farm in the locality separate and distinct from the defendant's (or Yaa Nframa's) farm, it purported to accept the defendant's uncorroborated statement that the plaintiff had no farm there at all. It also purported to "disbelieve the evidence of the said Kantinka (Kramorgo Wangara)" which, it is to be pointed out, the defendant had not by any questions in cross-examination challenged at all, and did not appear to have considered the evidence of the plaintiff's third witness, to which no reference whatsoever was made. Although it recorded that there was an inspection, there was no record of what was seen and what was not seen or of how the inspection either supported or else discredited the case of either party. Its ultimate conclusion was that: "on the surrounding facts judgment delivered in favour of defendant", leaving it most obscure and dubious what those "surrounding facts" were which warranted a judgment in favour of the defendant. [p.410]

On appeal to the Asantehene's Court, that court found it necessary to inspect the farm or farms in dispute, and in the light of the criticism already directed against the inspection by the trial court, namely, that there is no record of what was seen or not seen and no indication of how the inspection supported or discredited the case of either party, I am of the opinion that the inspection by the appellate court was necessary and amply justified.

The court recorded the result of its inspection in these words:

"this court inspected the disputed area with the parties and their respective witnesses, and is perfectly satisfied that what plaintiff and her witnesses showed appeared to be corroborative, and we accept the boundary shown by them to be correct."

As to this conclusion or finding of the appellate court, it seems to me to follow inevitably from the circumstance that the evidence of the plaintiff's second and third witnesses as to their knowledge of the location of the plaintiff's farm and its boundaries was completely unchallenged by the defendant.

The appellate court also dealt with the finding of the trial court that the plaintiff had no farm at all in the area, and pointed to the cogent, and indeed decisive, evidence of Yaw Pem, the head of the family to the contrary, and concluded as follows: "Defendant-respondent has argued that plaintiff-appellant has no farm at all on the disputed area, whilst the successor to his late father has disproved this fact". It is clear that this is also an inevitable conclusion at which the appellate court was bound to arrive, having regard to the irrefutable nature of Yaw Pem's evidence on the point, the trial court's own acceptance of that evidence of Yaw Pem, and the final direction contained in their own seemingly contradictory judgment that: "The plaintiff has right to claim her share of farm from Yaw Pem". Finally the appellate court dealt with the trial court's unwarrantable rejection of Kantinka Wangara's evidence and pointed out that:

"The evidence of the plaintiff's independent witness in the person of Kantinka Wangara who had been caretaker of the disputed farm (meaning Asiwubuoo's area out of which the smaller farms of both parties were carved out, as the witness explained), for upwards of eighteen years, carried heavy weight in favour of plaintiff-appellant."

In this last observation, the appellate court was giving the correct and right estimate or evaluation of a boundary-owner's evidence, and the conclusion was amply justified in my opinion by the circumstance already referred to, that the evidence was, at any rate, unchallenged. The appellate court concluded by saying:

"In view of the circumstances, this court would have no hesitation to uphold the appeal. The appeal is allowed, and the judgment of the court below which is not consistent with facts on record is upset."

and I am of opinion the conclusion is a correct and sound one, and that the Land Court was right in affirming it.

For the foregoing reasons I would dismiss the appeal and affirm the judgment of the Land Court confirming that of the Asantehene's Court. [p.411]

As, however, by inadvertence no judgment has been entered for the plaintiff on her claim, I would rectify that omission by entering judgment for the plaintiff and awarding her G10 damages for trespass on her farm described as in the writ of summons.

JUDGMENT OF KORSAH C.J.

I agree.

JUDGMENT OF VAN LARE J.S.C.

I also agree.

Decision

<P>Appeal dismissed.</P> <P>Judgment entered for plaintiff.</P>

Plaintiff / Appellant

A. Asafu-Adjaye with him Prempeh for the defendant appellant.

Defendant / Respondent

No appearance for the plaintiff respondent.

Referals

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